Supreme Court gets it right

Enforcement of constitutional rights can be messy, especially when long-term protection of civil liberties produces disturbing short-term consequences. In the end, we must pay this price to protect our free society.

The U.S. Supreme Court on Monday correctly ruled that police in almost all cases must obtain a search warrant before planting tracking devices on suspects' cars. But the decision, in a Washington, D.C., case, could endanger the convictions in one of the East Bay's most notorious murder cases.

It might even force a retrial of Yusef Bey IV, the former leader of Oakland's Your Black Muslim Bakery, and co-defendant Antoine Mackey, whose convictions for the 2007 murder of journalist Chauncey Bailey in Oakland relied on evidence from a tracking device placed on Bey's car without a warrant.

In the case before the Supreme Court, police tracked a night club owner suspected of trafficking drugs. He was later convicted based in part on 2,000 pages of data the tracking device relayed over a four-week period. The court ruled that the defendant's Fourth Amendment protection from unreasonable searches had been violated.

"It is important to be clear about what occurred in this case," Justice Antonin Scalia wrote. "The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

In the Bey case, police investigating his suspected involvement in another case hid a tracking device on his car. The global-positioning system was still active more than a month later when data showed the car parked outside Bailey's apartment less than seven hours before his slaying and then driving past the killing scene less than an hour after the shooting. That information was a key part of the prosecution.

Fortunately, Bey and Mackey won't be walking out of prison because two other murder convictions would not be affected if a retrial were ordered in Bailey's killing. Nevertheless, the possibility of a new trial is unsettling.

If necessary, it's a price we must pay. Otherwise, such data is ripe for abuse, providing "Big Brother" windows into our lives.

As Justice Sonia Sotomayor said in her concurring opinion, "GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious and sexual associations." Furthermore, "awareness that the government may be watching chills associational and expressive freedoms."

The high court ruling doesn't prevent use of such monitoring devices. It only requires that police first obtain a warrant. That's a reasonable hurdle to prevent abuse.

If anything, the ruling doesn't go far enough. Five justices, including Scalia and Sotomayor, conclude that the planting of a tracking device constitutes an unreasonable physical search. But, as four justices who joined in a concurring opinion written by Justice Samuel Alito point out, today's technology provides location information without the planting of hidden devices.

Think about cellphones, automatic toll-collection devices and tracking systems built into cars to guard against theft. They all provide constant location data without the requirement that police plant the device. Should users have a reasonable expectation of some privacy? If so, how far does that extend? For now, the court has left that debate for another day.